What is Respirable Crystalline Silica?
Crystalline silica is a common mineral and fundamental component in materials like granite, sand, stone, concrete and mortar. It is also used to make products such as glass, pottery, ceramics, bricks, and artificial stone.
Approximately 2.3 million people in the U.S. are exposed to silica at work. Silica particles that are not small enough to be airborne (e.g., on sandy beaches) pose no risk. However, the Occupational Safety and Health Administration (“OSHA”) has determined that hazardous issues are created when respirable crystalline silica is created through abrasive blasting or activities such as cutting, sawing, grinding and drilling. These types of activities leave workers exposed to respirable crystalline silica dust. Workers who inhale these minute crystalline silica particles are at an increased risk of developing serious silica-related diseases, including: (1) silicosis, an incurable lung disease that can lead to disability, cancer and death; (2) chronic obstructive pulmonary disease; and (3) kidney disease. Symptoms associated with silicosis may or may not be apparent, therefore a chest x-ray is required to verify the existence of lung damage and confirm a diagnosis.
The New OSHA Regulations
OSHA issued two new standards involving respirable crystalline silica in order to better protect workers exposed to these harmful particles: one for the construction industry, and the other for general industry and/or maritime industry. OSHA began enforcing most provisions for the construction industry on September 23, 2017, and will begin enforcing most provisions for general and maritime industries on June 23, 2018. According to the construction regulation, employers must conduct “medical surveillance” and an exposure assessment of each employee who is or may reasonably be expected to be exposed to silica dust as a part of their job. Medical surveillance includes an initial examination which shall consist of, among other things, a chest x-ray.
Compliance with OSHA’s Crystalline Silica Regulations
Both employers and employees must comply with the new regulations. Noncompliance with the new standard carries a maximum fine of $12,675 for a serious or other-than-serious violation; $12,675 per day past the abatement date for a failure-to-abate violation; and $126,749 for a repeated or willful violation. 29 C.F.R. § 1903.15(d).
Employers are subject to two duties under OSHA regulations. First, they have a “general duty” to provide a work environment that is free of “recognized hazards” that are causing or are likely to cause death or serious injury. Second, they have the “specific duty” to comply with specific occupational safety and health standards promulgated by the Secretary of Labor. 29 U.S.C.A. § 654(a). In Nat’l Realty & Const. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973), the District of Columbia Circuit Court formulated the “preventability test” which holds an employer in violation of the general duty clause if, under the circumstances, it could have prevented the occurrence of employee misconduct by taking demonstrably feasible precautions. “Demonstrably feasible measures are those enforcement techniques which it is reasonable to require of employers faced with a problem of employee noncompliance, given the character of the hazard and the economics of the industry.” Employee Noncompliance with OSHA Safety Standards, 90 Harv. L. Rev. 1041, 1049-50 (1977). The overall purpose of the preventability test is to weigh all of the facts and circumstances in an effort to assess the adequacy of the employer’s efforts to prevent harm. Brennan v. OSHRC, 501 F.2d 1196 (7th Cir. 1974).
An Employer’s Obligations
Taking these cases and articles into account, the overwhelming theme is the importance of preventative measures and disciplinary action. The basic elements of the preventability test include an adequate safety program with established work rules or instructions, diligent supervision to ensure compliance with rules, and sanctions for non-compliance with the rules. See OSHA Field Operations Manual, Ch. 5, VI., B. However, it is worth noting that hazardous employee misconduct alone does not absolve an employer of OSHA liability. See, Brennan, 501 F.2d 1196. The employer must have taken demonstrably feasible measures to materially reduce the likelihood that misconduct would have occurred. Nat’l Realty & Const. Co., 489 F.2d 1257. In practice, this could take the form of holding safety meetings to explain the crystalline silica rule, posting the requirements of the rule in common places, setting up x-ray appointments for employees, and setting up follow-up appointments for employees. Importantly, an employer must satisfy the third element of the preventability test by sanctioning employees who violate the rules by refusing a chest x-ray. Reprimands and/or fines imposed on employees are considered sufficient sanctions in the absence of any indication they are not effective (such as repeated violations). Ross Island Sand & Gravel Co., 4 OSHC 1797 (Oct. 8, 1976). However, a pattern of non-compliance in the face of an employer’s safety rules will not establish a defense to citations. At that point, stricter discipline to the point of dismissal may be necessary. OSHA: Employer Liability for Employee Violations, 1977 Duke. L. Rev. 614, 628 (1977).
If this OSHA regulation is applicable to your business, contact the experienced attorneys at Rock, Fusco & Connelly, LLC, to ensure business is in compliance.